Unitary Taxation with a Global Formulary Approach as a Realistic and Appropriate Option for Developing Nations: A China Case Study This is a Presentation by Kerrie Sadiq (project funded by the ICTD)

1. Unitary Taxation with a Global
Formulary Approach as a Realistic
and Appropriate Option for
Developing Nations: A China Case
Study
Kerrie Sadiq
(project funded by the ICTD)

2. Motivation for the Paper
• Developing nations and emerging economies have transfer pricing regimes
which are still evolving and present a unique set of challenges.
• The United Nations Practical Manual on Transfer Pricing for Developing
Countries.
• The UN Practical Manual generally provides a consensus based approach
to the unique issues faced by developing nations.
• Chapter 10 of the UN Practical Manual specifically deals with the country
practices of Brazil, China, India and South Africa with each of these
nations contributing their own dialogue.
• China’s contribution the most significant.

3. Formulary apportionment
A method of allocating profit earned by a MNE to a particular tax
jurisdiction in which the corporation or group has a taxable presence.
It is an alternative to separate entity accounting, under which a branch
or subsidiary within the jurisdiction is accounted for as a separate
entity, requiring prices for transactions with other parts of the
corporation or group to be assigned according to the arm's length
standard commonly used in transfer pricing.
Formulary apportionment attributes the corporation's total worldwide
profit (or loss) to each jurisdiction, based on factors such as the
proportion of sales, assets or payroll in that jurisdiction.
The parent and all of its parts are viewed as though they were a single
entity and the method is then also known as unitary taxation.

4. Institutional Background
• OECD Transfer Pricing Guidelines for Multinational Enterprises and Tax
Administrations
– The OECD Guidelines are often viewed as the “gold standard” by nations
around the world when looking for transfer pricing guidance and direction on
the application of the arm’s length pricing principle.
– Represent nearly two decades of work by the OECD on what is considered
the internationally consistent transfer pricing approach.
– OECD membership consists of developed nations with extensive
capabilities not only in dealing with complex transfer pricing issues but who
also have sophisticated administrative regimes which support the
implementation of, and compliance with, the OECD Guidelines.
– Developing nations and emerging economies have transfer pricing regimes
which are still evolving and present a unique set of challenges.

5. Institutional Background
• UN Practical Manual
– “The “value added” of the Manual is to be its practicality — addressing real
issues for developing countries (and of course those dealing with the
administrations of such countries) in a practical and problem-solving way. It
therefore seeks to address the theory of transfer pricing, but in a way that
reflects developing country realities in this area.”
– The UN Practical Manual generally provides a consensus approach to the
unique issues faced by developing nations.
– However, in recognition of the lack of consensus on several issues, as well
as different country views, Chapter 10 of the UN Practical Manual
specifically deals with the country practices of Brazil, China, India and South
Africa with each of these nations contributing their own dialogue.

6. OECD BEPS Acton Plan Methodology
“The BEPS project marks a turning point in the history
of international co-operation on taxation.”
“As the current consensus-based framework is at risk, it is
critical that a proper methodology be adopted to make sure
that the work is inclusive and effective, takes into account
the perspective of developing countries and benefits from
the input of business and the civil society at large.”

7. BEPS Action Plan
“In the area of transfer pricing, the rules should be
improved in order to put more emphasis on value creation
in highly integrated groups, tackling the use of intangibles,
risks, capital and other high-risk transactions to shift profits.
At the same time, there is consensus among governments
that moving to a system of formulary apportionment of
profits is not a viable way forward; it is also unclear that the
behavioural changes companies might adopt in response
to the use of a formula would lead to investment decisions
that are more efficient and tax-neutral than under a
separate entity approach.”

8. ACTIONS 8, 9, 10
Assure that transfer pricing outcomes are in line with value
creation
• Action 8 – Intangibles
– Develop rules to prevent BEPS by moving intangibles
among group members.
• Action 9 – Risks and capital
– Develop rules to prevent BEPS by transferring risks
among, or allocating excessive capital to, group members.
• Action 10 – Other high-risk transactions
– Develop rules to prevent BEPS by engaging in
transactions which would not, or would only very rarely,
occur between third parties.

9. China’s Contribution to the UN Document
Contribution broad and highlights many of the unique issues
faced by developing countries which it believes have not been
sufficiently or practically addressed by the OECD Guidelines.
China’s transfer pricing regime gained momentum in the late
1990s.
Because of its developing country status, with its unique
economic and geographic factors, it faces a number of difficult
challenges including a lack of appropriate comparables, quantifi-
cation and allocation of location-specific advantages, and
identification and valuation of intangibles.

10. Main Concerns
• Lack of appropriate comparables – this is the key
challenge for developing countries (TNMM overused)
• Location specific advantages - “Location savings” on the
supply side and “market premiums” on the demand side.
• Valuing and allocating intangibles – value chain analysis
which is arguably consistent with the OECD thoughts.

11. China’s view on formulary apportionment
China goes so far as to mention formulary apportionment as a
possible solution to the difficulties it faces in applying the arm’s
length principle and, using the example of global consumer
electronics companies, specifically states:
“rather than a transactional or profits-based approach, a
contribution analysis approach may be more suitable. This
means that remuneration to each party involved would be
commensurate with its role and contribution to the value
chain in the group. In this case, the assets and the people
should largely dictate where the group’s profits should stay,
and a global formulary approach should be a realistic and
appropriate option.”

12. Issues with Formulary Apportionment
• Definitions:
– What is a unitary business
– Which parts of the business are included for unitary
taxation purposes
• The Formula:
– Existing formulas
– What about MNEs

13. Defining the Unitary Business
• What is meant by a MNE which is ‘multinational’ and what is
the ‘nexus’ in the context of jurisdiction to tax?
• What is generally considered to fall within the scope of the
MNE and what are the various components of the market
sector?
• What is the ‘unitary business’ of a MNE? Which activities of
the MNE should be included both in the context of the
different parts of the entity and the different activities
undertaken?

14. The Taxable Connection to a MNE
• Depending on the factors contained in the formula, an
approach which relies on the traditional concept of the
permanent establishment to establish nexus can lead to income
being allocated to a jurisdiction with insufficient taxable
connection.
• As such, a different taxing nexus or taxable connection, such
as sales into a jurisdiction rather than residence or its proxy of
a permanent establishment would better align with economic
substance and provide a taxing nexus where MNEs are
conducting business consistent with a formulary
apportionment approach.

15. The Scope of the MNE
• To ensure that all parts of the business are subject to the same
international tax regime, it would be necessary to define a
MNE widely.
• Failure to do so would undoubtedly fail to capture some of the
riskier and more innovative activities and arrangements.

16. The Unitary Business of the MNE
• The Scope of the Unitary MNE Group
– legal organisational structures
• The Scope of the Unitary Business Activities
– Business and Non-Business Income
– Combined Income versus Activity-by-Activity
Approach

17. The Apportionment Formula: Factors Defined
• The Payroll Factor
– The payroll factor, generally defined as total employee compensation
including salaries, commissions and bonuses, is included to reflect the
contribution of labour to the generation of the income of the entity.
• The Property Factor
– The property factor, sometimes known as the asset factor, is included in
some formulas on the basis that capital is an important income
producing factor.
• The Sales Factor
– The sales factor (by destination) is generally viewed as a relatively easy
factor to measure.

18. The Apportionment Formula: Examples
• The Canadian System
– As a general rule, Canada applies a two-factor formula of sales and
payroll with each weighted equally.
• The German System
– The formula which is applied to the basic tax amount is a single factor of
salary and wages on the basis that this represents the costs that are
caused by trade activities.
• The Swiss System
– Three different methods are used for apportioning the income of a
company; direct, indirect and mixed.
• The United States System
– Massachusetts Formula, Double Weighted Sales Formula or Single-
Sales Factor Formula

19. The Proposed European Union System
Member Profits =
(⅓ (member sales/total sales) + ⅓ (½ member payroll /total
payroll + ½ no of member
employees/total number of employees) + ⅓ (member assets /total
assets))
x consolidated tax base

20. Conclusion: A Proposed Formula for MNEs
• An equally weighted two-factor formula of labour and sales is
the most likely to be broadly accepted as well as meet the
criteria of fairness and equity.
• An origin based labour factor and a destination based sales
factor is the most appropriate.
• The biggest difficulty will be the sales factor and determining
the location for sale of certain services such as financial
services.

21. Thank You